In re H.H.

I
[Cite as In re H.H., 

2021-Ohio-1732

.]


                                IN THE COURT OF APPEALS OF OHIO

                                      TENTH APPELLATE DISTRICT

In the Matter of:                                       :

[H.H.                                                   :                       No. 20AP-362
                                                                           (C.P.C. No. 17JU-13502)
                                                        :
J.H., Father,                                                           (REGULAR CALENDAR)
                                                        :
                   Appellant].
                                                        :


                                              D E C I S I O N

                                         Rendered on May 20, 2020


                   On brief: Emily L. McDonnell, for Franklin County Children
                   Services.

                   On brief: Yeura R. Venters, Public Defender, and George
                   Schumann, for appellant.

                     APPEAL from the Franklin County Court of Common Pleas,
                         Division of Domestic Relations, Juvenile Branch

DORRIAN, P.J.
           {¶ 1} Appellant, J.H., father of H.H., appeals the June 25, 2020 decision and
judgment entry of the Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch, which overruled appellant's objection to the juvenile court
magistrate's January 27, 2020 decision granting the motion of appellee, Franklin County
Children Services ("FCCS"), to place H.H. in a planned permanent living arrangement
("PPLA"). For the following reasons, we affirm.
I. Facts and Procedural History
           {¶ 2} On November 6, 2017, FCCS filed a complaint alleging H.H. was a dependent
child pursuant to R.C. 2151.04(C).1 On November 8, 2017, the juvenile court magistrate


1   We note that FCCS indicated this was the first refiling of the complaint.
No. 20AP-362                                                                                2


held a hearing at which the following individuals were present: J.H., who was represented
by counsel; Trish Stephens, FCCS liaison; Robert Petty, guardian ad litem for H.H., and an
assistant prosecuting attorney. On the same date, the juvenile court magistrate filed an
order granting temporary custody of H.H. to FCCS and an entry containing findings of fact
and conclusions of law, which were incorporated into the magistrate's order.             The
magistrate found that FCCS assumed custody of H.H. from J.H. and placed H.H. in
residential treatment for evaluation due to a significant mental health diagnosis. The
magistrate found J.H. stated H.H. could not return home without a significant change in
behavior. As a result, the magistrate found reasonable efforts had been made to prevent
the removal of H.H. from the home.
       {¶ 3} On January 19, 2018, Brian M. Furniss, acting as H.H.'s guardian ad litem
("GAL Furniss"), filed a report and recommendation. On January 22, 2018, the juvenile
court magistrate held a hearing on the dependency complaint. On February 13, 2018, FCCS
filed a case plan. On February 15, 2018, the juvenile court magistrate filed a decision, which
was approved and adopted by the juvenile court, finding H.H. to be a dependent minor
under R.C. 2151.04(C), approving and adopting the case plan, and granting temporary court
custody of H.H. to FCCS.
       {¶ 4} On February 20, 2018, FCCS filed a semi-annual review. On July 13, 2018,
FCCS filed a motion for PPLA pursuant to R.C. 2151.415 and Juv.R. 14 and 19. On
August 15, 2018, GAL Furniss filed a report and recommendation. On November 7, 2018,
FCCS filed a semi-annual review. On December 11, 2018, the juvenile court magistrate held
a hearing on FCCS's July 13, 2018 motion for PPLA. On December 17, 2018, the juvenile
court magistrate filed a decision amending FCCS's July 13, 2018 motion for PPLA at the
request of FCCS to reflect a request for extension of temporary court custody and granting
such motion.
       {¶ 5} On January 31, 2019, FCCS filed a second motion for PPLA pursuant to R.C.
2151.415 and Juv.R. 14 and 19. On March 21, 2019, GAL Furniss filed a report and
recommendation. On March 22, 2019, the juvenile court magistrate held a hearing on
FCCS's January 31, 2019 motion for PPLA. On March 26, 2019, the juvenile court
magistrate filed findings of fact and conclusions of law. On March 27, 2019, the juvenile
court magistrate filed a decision, which was approved and adopted by the juvenile court,
No. 20AP-362                                                                                3


amending FCCS's January 31, 2019 motion for PPLA at the request of FCCS to reflect a
request for extension of temporary court custody and granting the motion for a second
extension of temporary court custody.
        {¶ 6} On July 3, 2019, FCCS filed a third motion for PPLA pursuant to R.C. 2151.415
and Juv.R. 14 and 19. On August 14, 2019, GAL Furniss filed a report and recommendation.
On November 7 and December 16, 2019, the juvenile court magistrate held hearings on
FCCS's July 3, 2019 motion for PPLA.
        {¶ 7} At the hearing, Rachel Buchhop, program coordinator at Genacross Family
and Youth ("Genacross"), testified that H.H. had been placed at Genacross in 2017. Prior
to arriving at Genacross, H.H. had been at Nationwide Children's Hospital. Providers at
Nationwide Children's Hospital recommended H.H. be placed in a residential treatment
facility.
        {¶ 8} According to Buchhop, H.H., who was 17 years old at the time of the hearings,
displayed thinking ability consistent with a five or six-year-old child and was unable to care
for herself. H.H. received medications four times a day to treat mood swings in which she
displayed verbal and physical aggression, sleeping issues, attention deficit and
hyperactivity disorder ("ADHD"), and behavioral outbursts. H.H.'s behavioral outbursts
included physical violence, dangerous behavior with imaginary friends, and sexual
improprieties. H.H. received residential schooling due to her behavioral issues. H.H. had
an Individualized Education Plan ("IEP"). H.H. was supervised at all times, including
constantly being within the line of sight of monitoring personnel. According to Buchhop,
H.H.'s behavior had "drastically" become worse over the last year while at Genacross.
(Nov. 7, 2019 Tr. at 39.)
        {¶ 9} Buchhop testified that H.H. received regular phone calls from her two
grandmothers; however, H.H.'s grandmothers had never physically visited Genacross.
According to Buchhop, H.H. preferred to speak with her grandmothers instead of J.H.
Buchhop stated that J.H. had not attended semi-annual reviews or met with H.H.'s medical
providers. At the time of the hearing in November 2019, J.H. last visited H.H. at Genacross
in February 2019.
        {¶ 10} Buchhop expressed concern with H.H. returning home with J.H. due to the
presence of H.H.'s younger siblings in the home. H.H. physically attacked and targeted
No. 20AP-362                                                                                4


younger children at Genacross and made homicidal comments toward younger children
when she was agitated. According to Buchhop, H.H. wished to be placed with her
grandmothers.
       {¶ 11} Carrie Metzker, a district representative from Columbus City Schools,
testified that she participated in creating three IEPs for H.H. According to Metzker, J.H.
was invited to participate in but did not attend any meetings regarding the creation of
H.H.'s IEPs.
       {¶ 12} J.H. testified he has four children, including H.H. According to J.H., he
moved H.H. from Kansas to Ohio in May or June 2017. In July 2017, he entered into a
voluntary custody agreement with FCCS.
       {¶ 13} According to J.H., H.H. had been prescribed and was taking 1,200 milligrams
of Seroquel before they moved to Ohio. The doctor who prescribed H.H. that amount of
Seroquel had not seen H.H. since she was approximately five or six years old. After moving
to Ohio, J.H. had difficulty filling H.H.'s prescription for Seroquel because H.H. did not see
a psychiatrist. J.H. believed H.H.'s behavior would be better if she again received the
amount of Seroquel that she had been prescribed in Kansas. J.H. acknowledged the
amount of Seroquel H.H. had previously been prescribed was 50 percent higher than the
maximum dosage recommended by the Food and Drug Administration.
       {¶ 14} J.H. stated he had not completed any parenting classes in Ohio although he
had been required to do so under the case plan. J.H. did not recall that the case plan
required him to be involved with H.H.'s medical appointments and admitted he had not
attended any of H.H.'s medical appointments since H.H. had been placed at Genacross.
J.H. disputed Genacross' records that he had only been to Genacross to visit H.H. three
times. According to J.H., he had visited H.H. at Genacross between seven to ten times. J.H.
agreed that H.H. had been placed in seven different treatment facilities or hospitals to his
knowledge.
       {¶ 15} J.H.'s two youngest children, who were approximately two and one-half years
old and 15 months old respectively, lived with J.H., J.H.'s wife, and his wife's father and
stepmother. According to J.H., if H.H. was returned to his custody, she would have her
own room, while J.H., his wife, and the two other children would stay together in another
No. 20AP-362                                                                               5


room. According to J.H., he was self-employed at the time of the hearing. Neither J.H. nor
his wife had a driver's license.
       {¶ 16} Emily Brown testified she was previously the FCCS caseworker assigned to
H.H.'s case from July 24, 2017 until November 20, 2018. According to Brown, H.H.'s case
began due to H.H. experiencing suicidal and homicidal ideations. Specifically, after H.H.'s
now two-year-old sibling was born, H.H. stated she wanted to kill her sibling, her family,
and herself. FCCS entered into a voluntary agreement with J.H. on July 20, 2017. After
entering into the agreement, H.H. was admitted to Nationwide Children's Hospital for a
period of 37 days, during which time H.H. was diagnosed with unspecified mood disorder,
autism spectrum disorder, and intellectual disability.
       {¶ 17} According to Brown, J.H. was involved with H.H.'s medical treatment during
her time as H.H.'s caseworker. Specifically, J.H. believed H.H. was undermedicated and
requested 1,200 milligrams of Seroquel to be prescribed for H.H. Brown conveyed this
request to a physician, but it was rejected by the physician as unethical. Brown testified
that Seroquel had been discontinued for H.H.'s treatment and that H.H. was instead
receiving Latuda for behavioral issues.
       {¶ 18} According to Brown, FCCS provided J.H. with bus passes and cab fare to visit
H.H. Of the five appointments Brown scheduled for J.H. to visit H.H., J.H. attended only
two. Brown never observed interactions between J.H. and H.H. According to Brown, H.H.
was consistent in her wish to live with her grandmother. H.H. did not wish to live with J.H.
Brown testified that H.H.'s mother had never been involved with the case while Brown was
H.H.'s caseworker.
       {¶ 19} Brown testified that alternatives to PPLA were considered. Brown referred
H.H. to the Franklin County Board of Developmental Disabilities. If H.H.'s behavior no
longer required placement in a residential facility, Brown considered it possible for H.H. to
live in Franklin County with services from the Franklin County Board of Developmental
Disabilities.
       {¶ 20} Gloria Butler, an FCCS caseworker, testified she became the caseworker for
H.H.'s case on November 20, 2018. Butler testified H.H. was diagnosed with ADHD and
was receiving Latuda for behavioral issues. According to Butler, J.H. had not
communicated with her about H.H.'s medical diagnoses and H.H.'s ongoing needs during
No. 20AP-362                                                                                   6


her time as H.H.'s caseworker. J.H. had not attended any meetings about H.H.'s treatment
to Butler's knowledge. According to Butler, J.H. was provided with information on
parenting classes but did not complete them. Butler scheduled five appointments and
provided transportation for J.H. to visit H.H.; however, J.H. only attended one of the visits.
Butler believed that PPLA was the most appropriate result because H.H.'s grandmother
was unable to care for her and it was recommended that H.H. remain in a structured
environment.
       {¶ 21} Furniss testified he was appointed GAL for H.H. Furniss had not had an
opportunity to review any interaction between H.H. and J.H. because J.H.'s visits were
"rather sporadic." (Dec. 16, 2019 Tr. at 60.)
       {¶ 22} When asked whether H.H. was able to understand the nature of the
proceedings in order to ascertain her wishes, GAL Furniss replied that H.H. is "at that level
of development [where] I think [H.H. is] able to understand what she wants." (Dec. 16,
2019 Tr. at 62.) Regarding H.H.'s wishes, GAL Furniss testified as follows:
               The last time I was up there I did not as[k] [H.H.] the -- the
               wishes. For [H.H.], I think it kind of - - your ability to ask those
               kinds of things depends on the day and how she's doing on a
               given day. When I was up there the last time [H.H.] wanted - -
               [H.H.] kind of sets the tone for what she wants to talk about.
               The last time [H.H.] wanted to talk about going apple picking,
               which is what they were gonna (sic) be doing the next day. * * *
               So I did not address that with her. I had talked to her previously
               in the case, but not about - - not specifically about the PPLA.
(Dec. 16, 2019 Tr. at 60-61.) When asked again about whether he had discussed H.H.'s
wishes, GAL Furniss replied "[a]gain not - - not at the last visit but - - but previously * * *
[H.H. has] been happy to be where she is." (Dec. 16, 2019 Tr. at 62.) GAL Furniss testified
that Genacross had "done * * * a good job in my opinion of accommodating [H.H.'s] needs
and wants to the point that she's happy there." (Dec. 16, 2019 Tr. at 63.) When asked on
cross-examination whether he had specifically discussed PPLA with H.H., GAL Furniss
replied "I have not and I have not felt that it would be productive to try to do that." (Dec. 16,
2019 Tr. at 65.)
       {¶ 23} GAL Furniss did not believe J.H. would be able to provide a safe and stable
home for H.H. due to her specific needs. Furthermore, GAL Furniss believed it would not
be appropriate to place H.H. in J.H.'s home around her younger siblings because of H.H.'s
No. 20AP-362                                                                               7


aggression toward younger children. GAL Furniss believed PPLA was "exactly what [H.H.]
needs." (Dec. 16, 2019 Tr. at 63.)
       {¶ 24} On January 27, 2020, the juvenile court magistrate filed a decision, which
was approved and adopted by the juvenile court, granting FCCS's July 3, 2019 motion for
PPLA pursuant to R.C. 2151.353(A)(5).
       {¶ 25} On February 3, 2020, the juvenile court magistrate held a hearing. On
February 6, 2020, J.H. filed an objection to the January 27, 2020 magistrate's decision. On
February 12, 2020, FCCS filed a case plan. On February 14, 2020, the juvenile court
magistrate filed a decision, which was approved and adopted by the juvenile court,
approving and adopting the case plan as an order of the court. On June 5, 2020, J.H. filed
a supplemental objection to the January 27, 2020 magistrate's decision. On June 22, 2020,
FCCS filed a memorandum contra J.H.'s objection to the January 27, 2020 magistrate's
decision. On June 25, 2020, the juvenile court filed a decision and judgment entry
overruling J.H.'s objection to the magistrate's decision.
II. Assignment of Error
       {¶ 26} J.H. appeals and assigns the following sole error for our review:
              The juvenile court erred in overruling the defendant-appellant
              father's objection to the magistrate's decision granting planned
              permanent living arrangement (PPLA) of the minor child
              under R.C. 2151.415(C)(1)(a), as neither the juvenile judge nor
              the magistrate considered the best interest factors under R.C
              2151.414(D)(1)(a), (b), (c), (d) or (e), as required by R.C.
              2151.414(D)(1) and R.C. 2151.415(C)(1).
III. Analysis
       {¶ 27} In his sole assignment of error, J.H. argues the juvenile court erred in
overruling his objection to the magistrate's January 27, 2020 decision granting FCCS's
motion for PPLA because the juvenile court failed to consider the best-interest factors
under R.C. 2151.414(D)(1).
A. Applicable Law
       {¶ 28} "The right to parent one's child is a fundamental right protected by the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and Article
I, Section 16, of the Ohio Constitution." In re L.W., 10th Dist. No. 17AP-586, 2018-Ohio-
2099, ¶ 6. See also In re Murray, 

52 Ohio St.3d 155

, 157 (1990), quoting Stanley v. Illinois,
No. 20AP-362                                                                                   8


405 U.S. 645

, 651 (1972) ("[T]he right to raise one's children is an 'essential' and 'basic civil
right.' "). "Parents have a 'fundamental liberty interest' in the care, custody, and
management of the child." 

Id. at 157,

 quoting Santosky v. Kramer, 

455 U.S. 745

, 753
(1982). However, parental rights are not absolute and are always subject to the ultimate
welfare of the child. In re E.B., 10th Dist. No. 16AP-352, 

2017-Ohio-2672

, ¶ 19, citing In re
K.M., 10th Dist. No. 15AP-64, 

2015-Ohio-4682

, ¶ 15, citing In re Cunningham, 

59 Ohio
St.2d 100

, 106 (1979); In re B.C., 

141 Ohio St.3d 55

, 

2014-Ohio-4558

, ¶ 20.
       {¶ 29} R.C. 2151.415 provides for a children services agency that has been given
temporary custody of a child, pursuant to R.C. 2151.353(A), to file a motion seeking an order
of disposition for the child. In re M.W., 10th Dist. No. 11AP-524, 

2011-Ohio-6392

, ¶ 26,
citing In re S.W., 10th Dist. No. 05AP-1368, 

2006-Ohio-2958

, ¶ 35. Among six potential
orders of disposition, R.C. 2151.415(A)(5) provides for a children services agency to file a
motion with the juvenile court seeking "[a]n order that the child be placed in a planned
permanent living arrangement." "Planned permanent living arrangement" is defined as an
order of a juvenile court to which both of the following apply:
              (a) The court gives legal custody of a child to a public children
              services agency or a private child placing agency without the
              termination of parental rights.
              (b) The order permits the agency to make an appropriate
              placement of the child and to enter into a written agreement
              with a foster care provider or with another person or agency
              with whom the child is placed.
R.C. 2151.011(B)(38).
       {¶ 30} "Legal custody" is defined as:
              [A] legal status that vests in the custodian the right to have
              physical care and control of the child and to determine where
              and with whom the child shall live, and the right and duty to
              protect, train, and discipline the child and to provide the child
              with food, shelter, education, and medical care, all subject to
              any residual parental rights, privileges, and responsibilities. An
              individual granted legal custody shall exercise the rights and
              responsibilities personally unless otherwise authorized by any
              section of the Revised Code or by the court.
R.C. 2151.011(B)(21).
No. 20AP-362                                                                                    9


        {¶ 31} R.C. 2151.353 governs the orders of disposition that may be granted by a
juvenile court for a child adjudicated an abused, neglected, or dependent child. Pursuant
to R.C. 2151.353(A)(5), a juvenile court may order a child to be placed in PPLA provided
that:
               [A] public children services agency or private child placing
               agency requests the court to place the child in a planned
               permanent living arrangement and if the court finds, by clear
               and convincing evidence, that a planned permanent living
               arrangement is in the best interest of the child, that the child is
               sixteen years of age or older, and that one of the following
               exists:
               (a) The child, because of physical, mental, or psychological
               problems or needs, is unable to function in a family-like setting
               and must remain in residential or institutional care now and
               for the foreseeable future beyond the date of the dispositional
               hearing held pursuant to section 2151.35 of the Revised Code.
               (b) The parents of the child have significant physical, mental,
               or psychological problems and are unable to care for the child
               because of those problems, adoption is not in the best interest
               of the child, as determined in accordance with division (D)(1)
               of section 2151.414 of the Revised Code, and the child retains a
               significant and positive relationship with a parent or relative.
               (c) The child has been counseled on the permanent placement
               options available to the child, and is unwilling to accept or
               unable to adapt to a permanent placement.
See R.C. 2151.415(C)(1). Thus, on a motion from a children services agency, a court must
find by clear and convincing evidence that PPLA is in the best interest of the child, the child
is at least 16 years old, and that one of the specified conditions exist. See In re A.B., 

110 Ohio
St.3d 230

, 

2006-Ohio-4359

, ¶ 33 ("A planned permanent living arrangement places a child
in limbo, which can delay placement in a permanent home. Because the General Assembly
intended to encourage speedy placement, R.C. 2151.353 places limitations upon the use of
planned permanent living arrangements.").
        {¶ 32} R.C. 2151.414(D)(1) governs the juvenile court's consideration of best-interest
factors, providing as follows:
               In determining the best interest of a child at a hearing held
               pursuant to division (A) of this section or for the purposes of
               division (A)(4) or (5) of section 2151.353 or division (C) of
No. 20AP-362                                                                             10


             section 2151.415 of the Revised Code, the court shall consider
             all relevant factors, including, but not limited to, the following:
             (a) The interaction and interrelationship of the child with the
             child's parents, siblings, relatives, foster caregivers and out-of-
             home providers, and any other person who may significantly
             affect the child;

             (b) The wishes of the child, as expressed directly by the child or
             through the child's guardian ad litem, with due regard for the
             maturity of the child;

             (c) The custodial history of the child, including whether the
             child has been in the temporary custody of one or more public
             children services agencies or private child placing agencies for
             twelve or more months of a consecutive twenty-two-month
             period, or the child has been in the temporary custody of one
             or more public children services agencies or private child
             placing agencies for twelve or more months of a consecutive
             twenty-two-month period and, as described in division (D)(1)
             of section 2151.413 of the Revised Code, the child was
             previously in the temporary custody of an equivalent agency in
             another state;

             (d) The child's need for a legally secure permanent placement
             and whether that type of placement can be achieved without a
             grant of permanent custody to the agency;

             (e) Whether any of the factors in divisions (E)(7) to (11) of this
             section apply in relation to the parents and child.
      {¶ 33} R.C.   2151.414(D)(1).    The    additional    factors   referenced   by   R.C.
2151.414(D)(1)(e) are:
             (7) The parent has been convicted of or pleaded guilty to one
             of [a list of criminal offenses].

             (8) The parent has repeatedly withheld medical treatment or
             food from the child when the parent has the means to provide
             the treatment or food, and, in the case of withheld medical
             treatment, the parent withheld it for a purpose other than to
             treat the physical or mental illness or defect of the child by
             spiritual means through prayer alone in accordance with the
             tenets of a recognized religious body.

             (9) The parent has placed the child at substantial risk of harm
             two or more times due to alcohol or drug abuse and has
             rejected treatment two or more times or refused to participate
No. 20AP-362                                                                               11


              in further treatment two or more times after a case plan issued
              pursuant to section 2151.412 of the Revised Code requiring
              treatment of the parent was journalized as part of a
              dispositional order issued with respect to the child or an order
              was issued by any other court requiring treatment of the
              parent.

              (10) The parent has abandoned the child.

              (11) The parent has had parental rights involuntarily
              terminated with respect to a sibling of the child pursuant to this
              section or section 2151.353 or 2151.415 of the Revised Code, or
              under an existing or former law of this state, any other state, or
              the United States that is substantially equivalent to those
              sections, and the parent has failed to provide clear and
              convincing evidence to prove that, notwithstanding the prior
              termination, the parent can provide a legally secure permanent
              placement and adequate care for the health, welfare, and safety
              of the child.
R.C. 2151.414(E)(7) through (11). Pursuant to R.C. 2151.415(C)(2)(a), a court issuing an
order placing a child in PPLA "shall issue a finding of fact setting forth the reasons for its
finding."
B. Analysis
       {¶ 34} Here, J.H. does not challenge the juvenile court's resolution of the best-
interest factors but, rather, argues that the juvenile court's analysis failed to comport with
the statutory requirements. Specifically, J.H. asserts the juvenile court erred by considering
factors under R.C. 3109.04(F)(1), (2), and (3) instead of the best-interest factors under R.C.
2151.414(D)(1).
       {¶ 35} The Supreme Court of Ohio has held that "R.C. 2151.414(D)(1) does not
require a juvenile court to expressly discuss each of the best-interest factors in R.C.
2151.414(D)(1)(a) through (e)." In re A.M., __ Ohio St.3d __, 

2020-Ohio-5102

, ¶ 31. Thus,
although a juvenile court need not "include in its decision a written discussion of or express
findings regarding each of the best-interest factors," a court reviewing such decision "must
be able to discern from the magistrate's or juvenile court's decision and the court's
No. 20AP-362                                                                                                    12


judgment entry that the court satisfied the statutory requirement that it consider the
enumerated factors." Id.2
        {¶ 36} Here, the juvenile court stated that "[i]n determining the best interest of a
child, the court shall consider all relevant factors and considerations including those under
R.C. 3109.04(F)(1), (2), and (3)."3 (June 25, 2020 Decision at 13.) The juvenile court's

2We encourage juvenile courts to clearly articulate that they have considered all relevant best-interest factors
pursuant to R.C. 2151.414(D)(1) and make findings on the same. See A.M. at ¶ 42 (stating that "it is preferable
for a juvenile court to provide some discussion or analysis of the best-interest factors to aid in appellate review
and to increase confidence in its decision"). If we are unable to discern from the record whether the juvenile
court has complied with R.C. 2151.414(D)(1), consistent with A.M., we must remand in order to effectuate
meaningful appellate review.

3 R.C. 3109.04, a section of Title 31 of the Revised Code, which governs Domestic Relations, applies "[i]n any
divorce, legal separation, or annulment proceeding and in any proceeding pertaining to the allocation of
parental rights and responsibilities for the care of a child." R.C. 3109.04(A). R.C. 3109.04(F) provides a list of
factors for a court to consider when determining whether shared parenting is appropriate and allocating
parental rights and responsibilities for the care of children, including, in part, the best interest of the child.

We are mindful that the Supreme Court in A.M. recognized it was important that a juvenile court acknowledge
the applicable statutory framework. See A.M. at ¶ 40 ("When the record indicates that a juvenile court, in
response to timely filed objections, has undertaken an independent review of the evidence, has acknowledged
the applicable statutory framework, has adopted the magistrate's findings of fact, and has made the required
conclusions upon clear and convincing evidence, we can only conclude that the court has satisfied its
obligation under Juv.R. 40(D)(4)(d)."). (Emphasis added.) While the juvenile court in its decision overruling
J.H.'s objection discusses R.C. 2151.415(C), it did not refer to the best-interest factors it was required to
consider under R.C. 2151.414(D)(1) and, instead, pointed to R.C. 3109.04(F). Notwithstanding the juvenile
court's erroneous reference to R.C. 3109.04(F), it is clear the juvenile court was not applying the factors in
R.C. 3109.04(F) as cited below. Because the juvenile court cited R.C. 2151.415(C) and we are able to discern
from the juvenile court's decision that it considered the appropriate factors under R.C. 2151.414(D)(1), we find
the juvenile court's erroneous reference to R.C. 3109.04(F) to not be prejudicial.

Specifically, R.C. 3109.04(F) provides:

        (1) In determining the best interest of a child pursuant to this section, whether on an original decree
        allocating parental rights and responsibilities for the care of children or a modification of a decree
        allocating those rights and responsibilities, the court shall consider all relevant factors, including, but
        not limited to:
        (a) The wishes of the child’s parents regarding the child’s care;
        (b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding
        the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning
        the child, the wishes and concerns of the child, as expressed to the court;
        (c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other
        person who may significantly affect the child’s best interest;
        (d) The child’s adjustment to the child’s home, school, and community;
        (e) The mental and physical health of all persons involved in the situation;
        (f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation
        and companionship rights;
        (g) Whether either parent has failed to make all child support payments, including all arrearages, that
        are required of that parent pursuant to a child support order under which that parent is an obligor;
        (h) Whether either parent or any member of the household of either parent previously has been
        convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being
No. 20AP-362                                                                                                  13


decision included extensive findings of fact and a thorough examination of the factors it
considered in reaching its conclusions of law. Furthermore, the court specifically noted
that it considered "all relevant factors" in determining the best interest of H.H. (June 25,
2020 Decision at 13.) Thus, although the juvenile court did not specifically point to the
factors it was required to consider under R.C. 2151.414(D)(1), pursuant to A.M., we must
nevertheless consider whether the juvenile court's decision supports the conclusion that it
satisfied the statutory requirement to consider the R.C. 2151.414(D)(1) factors.
       1. Child's Interactions and Relationships
       {¶ 37} The first factor in determining whether an order granting PPLA is in the
child's best interest requires considering the interactions and interrelationships of the child
with their parents, siblings, relatives, foster caregivers, and others. R.C. 2151.414(D)(1)(a).
J.H. contends the juvenile court did not adequately consider this factor. However, the


       an abused child or a neglected child; whether either parent, in a case in which a child has been
       adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator
       of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any
       member of the household of either parent previously has been convicted of or pleaded guilty to a
       violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who
       at the time of the commission of the offense was a member of the family or household that is the
       subject of the current proceeding; whether either parent or any member of the household of either
       parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the
       time of the commission of the offense was a member of the family or household that is the subject of
       the current proceeding and caused physical harm to the victim in the commission of the offense; and
       whether there is reason to believe that either parent has acted in a manner resulting in a child being
       an abused child or a neglected child;
       (i) Whether the residential parent or one of the parents subject to a shared parenting decree has
       continuously and willfully denied the other parent’s right to parenting time in accordance with an
       order of the court;
       (j) Whether either parent has established a residence, or is planning to establish a residence, outside
       this state.
       (2) In determining whether shared parenting is in the best interest of the children, the court shall
       consider all relevant factors, including, but not limited to, the factors enumerated in division (F)(1) of
       this section, the factors enumerated in section 3119.23 of the Revised Code, and all of the following
       factors:
       (a) The ability of the parents to cooperate and make decisions jointly, with respect to the children;
       (b) The ability of each parent to encourage the sharing of love, affection, and contact between the
       child and the other parent;
       (c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental
       kidnapping by either parent;
       (d) The geographic proximity of the parents to each other, as the proximity relates to the practical
       considerations of shared parenting;
       (e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.
       (3) When allocating parental rights and responsibilities for the care of children, the court shall not
       give preference to a parent because of that parent’s financial status or condition.
No. 20AP-362                                                                             14


magistrate's decision and the juvenile court's decision overruling J.H.'s objection contain
factual findings regarding H.H.'s interrelationships. The juvenile court found in part that
"H.H. was voluntarily removed from the care of [J.H.] due to homicidal and suicidal threats
to herself and family, including a young sibling." (June 25, 2020 Decision at 16.)
Furthermore, the juvenile court found that "[s]ince [H.H.'s] placement at Genacross, [J.H.]
has only visited with [H.H.] three times." (June 25, 2020 Decision at 16.) Therefore, we
find the magistrate's decision and the juvenile court's decision overruling J.H.'s objection
demonstrate the court satisfied its duty to consider the best-interest factor under R.C.
2151.414(D)(1)(a).
       2. Child's Wishes
       {¶ 38} The second factor in determining whether an order granting PPLA is in the
child's best interest requires considering the wishes of the child, as expressed directly by
the child or through the child's guardian ad litem. The court must give due regard to the
child's maturity. R.C. 2151.414(D)(1)(b). The magistrate's decision notes GAL Furniss'
testimony that H.H. "need[ed] * * * structured residential treatment." (Jan. 27, 2020 Mag.'s
Decision at 2.) In his March 21, 2019 report, GAL Furniss stated that H.H. "is cognitively
delayed to the point that she cannot comprehend PPLA." (Report at 2.) At the PPLA
hearing, GAL Furniss testified to H.H.'s understanding of the proceedings and wishes:
              [FCCS Counsel]: [D]o you believe that [H.H. is] able to
              understand the proceedings that are going on when you try to
              talk to [H.H.] about them?
              [GAL Furniss]: [H.H. is] - - at that level of development I think
              [H.H. is] able to understand what she wants.
              [FCCS Counsel]: And have you discussed them with [H.H.]?
              [GAL Furniss]: Again, not - - not at the last visit but * * *
              previously [H.H. has] been happy to be where she is. * * *
              [H.H.] will fixate on things and the facility has really kinda (sic)
              given her a lot of leeway to have her particular passion at the
              moment. * * * [T]hey have done a - - a good job in my opinion
              of accommodating [H.H.'s] needs and wants to the point that
              [H.H. is] happy there.
              ***
              [FCCS Counsel]: [W]hat is your opinion or your
              recommendation regarding [FCCS's] motion for * * * PPLA?
No. 20AP-362                                                                               15


              [GAL Furniss]: Regarding the PPLA, I think it's * * * exactly
              what [H.H.] needs. [H.H. is] a kid that I would envision aging
              out at 21, given her special needs. * * * [I]n this case I think
              everybody sees that [H.H.], given [H.H.'s] level of
              development, needs to be in that structured environment for as
              long as we can possibly have her there.
              ***
              [FCCS Counsel]: Has [H.H.] ever consistently stated that she
              wanted to return home to [J.H.]?
              [GAL Furniss]: To my knowledge, she has not.
(Dec. 16, 2019 Tr. at 62-64.) In addition to adopting the magistrate's decision, the juvenile
court referred to the testimony of GAL Furniss in its decision overruling J.H.'s objection,
including specifically noting GAL Furniss' testimony that "Genacross accommodates
[H.H.'s] needs and [H.H.] is happy there." (June 25, 2020 Decision at 10.) Additionally,
the juvenile court found that H.H. "want[ed] to live with Maternal Grandmother, however
Maternal Grandmother has stated that health reasons would prevent her from taking
custody of [H.H.]." (June 25, 2020 Decision at 5-6.) Therefore, based on the facts and
circumstances of this case, we find the magistrate's decision and the juvenile court's
decision overruling J.H.'s objection demonstrate the court satisfied its duty to consider the
best-interest factor under R.C. 2151.414(D)(1)(b).
       3. Custodial History
       {¶ 39} The third factor in determining whether an order granting PPLA is in the
child's best interest requires considering the child's custodial history, including whether
they have been in the temporary custody of a public service agency for 12 or more months
of a consecutive 22-month period. R.C. 2151.414(D)(1)(c).
       {¶ 40} The magistrate found that "FCCS was given temporary custody by this Court
on August 17, 2017 after the expiration of a 30-day agreement between [J.H.] and FCCS
due to [H.H.] mental health concerns. [H.H.] was placed at Genacross, near Toledo, for
residential treatment under the 30-day agreement in July 2017 and has remained there
since." (Jan. 27, 2020 Mag.'s Decision at 2.) In its decision overruling J.H.'s objection, the
juvenile court found that "[o]n July 20, 2017, [J.H.] voluntarily entered into a thirty day
Temporary Order of Custody to [FCCS]. [H.H.] was placed in Genacross, a residential
facility located in Whitehouse, Ohio where she remains today. On January 22, 2018,
No. 20AP-362                                                                               16


Temporary Court Custody was granted to FCCS and [H.H.] was to remain at Genacross."
(June 25, 2020 Decision at 5.) Therefore, we find the magistrate's decision and the juvenile
court's decision overruling J.H.'s objection demonstrate the court satisfied its duty to
consider the best-interest factor under R.C. 2151.414(D)(1)(c).
       4. Provision of a Legally Secure Permanent Placement
       {¶ 41} The fourth factor in determining whether an order granting PPLA is in the
child's best interest requires considering the child's need for a legally secure placement and
whether that type of placement can be achieved without a grant of PPLA to a public agency.
R.C. 2151.414(D)(1)(d). The magistrate found returning H.H. to J.H.'s custody would not
be in H.H.'s best interest for the following reasons:
              The core component of the case plan for [J.H] was for him to
              be involved in [H.H.'s] treatment and therefore learn [H.H.'s]
              needs. This has not happened. Initially, [J.H.] has only visited
              with [H.H.] three (3) times during [H.H.'s] stay at Genacross
              despite FCCS efforts to arrange visits. [J.H.] has also not
              participated in any treatment meetings with Genacross or
              attended any of the three (3) Individualized Education Plan
              (IEP) meetings held regarding [H.H.]. His lack of
              understanding of [H.H.'s] needs is demonstrated in his
              testimony that [H.H.] is simply undermedicated, while those
              closely involved in [H.H.'s] treatment (Genacross, FCCS, and
              the GAL) all testified to [H.H.'s] need for structured residential
              treatment.
              FCCS has made reasonable efforts to prevent [H.H.'s] removal
              from home. FCCS has attempted to engage [J.H.] in [H.H.'s]
              treatment. Returning [H.H.] home was considered, but not an
              option given [J.H.'s] demonstrated lack of understanding of
              [H.H.'s] needs and the recommendation for residential
              treatment. Placement and casework services were provided by
              [FCCS] to the family of [H.H.], but the removal of [H.H.] from
              home continues to be necessary because the circumstances
              giving rise to the original filing have not been sufficiently
              alleviated.
(Jan. 27, 2020 Mag.'s Decision at 2.) Furthermore, the magistrate found that "[H.H.],
because of mental health needs, is unable to function in a family-like setting and must
remain in residential care." (June 25, 2020 Decision at 3.)
       {¶ 42} In its decision, the juvenile court found that "FCCS considered all other
possible dispositions." (June 25, 2020 Decision at 15.) Regarding the possibility of
No. 20AP-362                                                                                17


returning H.H. to J.H.'s custody, the court found that "[J.H.] has not engaged with [H.H.'s]
medical providers or those involved with [H.H.'s] educational planning since [H.H.] was
admitted to Genacross. Therefore, [J.H.] does not have sufficient understanding of [H.H.'s]
medical, mental health and educational needs." (June 25, 2020 Decision at 16.)
Furthermore, the juvenile court found that "[d]ue to [H.H.'s] mental and psychological
needs as stated in the findings of fact herein, the evidence overwhelmingly reflects that
[H.H.] cannot function in a family like setting and residential treatment is in [H.H.'s] best
interest." (June 25, 2020 Decision at 15-16.) Based on "detailed accounts of [H.H.'s]
disturbances and behaviors and the care necessary to keep [H.H.] and those around her
safe" provided by "qualified professionals," the court concluded that "[t]he evidence is
overwhelming that [PPLA] is in the best interest of [H.H.]." (June 25, 2020 Decision at 17.)
Therefore, we find the magistrate's decision and juvenile court's decision overruling J.H.'s
objection demonstrate the court satisfied its duty to consider the best-interest factor under
R.C. 2151.414(D)(1)(d).
       5. Other Factors
       {¶ 43} The fifth factor in determining whether an order granting PPLA is in the
child's best interest requires considering whether any of the factors listed in R.C.
2151.414(E)(7) through (11) apply. R.C. 2151.414(D)(1)(e). J.H. argues it was not
"fundamentally fair" for the juvenile court to not acknowledge this factor. (J.H.'s Brief at
38.) Although the juvenile court did not specifically cite any of the R.C. 2151.414(E)(7)
through (11) factors, we have previously stated that "[d]ue to the nature of the factors set
forth in R.C. 2151.414(E)(7) to (11), they will not apply in every case." L.W. at ¶ 32. This
court has affirmed decisions finding a grant of custody to an agency to be in a child's best
interest without explicit consideration of those factors where they did not apply, or
decisions where the juvenile court only considered certain of the R.C. 2151.414(E)(7) to (11)
factors that were applicable to the particular case. 

Id.

 See In re J.A.G., 10th Dist. No. 08AP-
823, 

2009-Ohio-821

, ¶ 16, fn.1 ("The trial court did not consider the fifth R.C. 2151.414(D)
factor as the factors [found] in R.C. 2151.414(E)(7) to (11) do not apply to J.R.G. and her
children."); In re J.S., 10th Dist. No. 05AP-615, 

2006-Ohio-702

, ¶ 32 (juvenile court
magistrate found that only R.C. 2151.414(E)(10) factor applied to the case and juvenile court
did not err by considering that factor); In re M.R.D., 10th Dist. No. 05AP-324, 2005-Ohio-
No. 20AP-362                                                                                18


5705, ¶ 30 (holding that most of the factors contained in R.C. 2151.414(E)(7) to (11) did not
apply under the facts of the case and there was some evidence that some of the parent's
children had been involuntarily removed from her care). Here, the record does not reflect
that any of the factors listed in R.C. 2151.414(E)(7) through (11) apply, and no party has
argued otherwise. Therefore, as the factors under R.C. 2151.414(E)(7) through (11) were
inapplicable to the matter at hand, we cannot find in this instance that the court's failure to
make findings regarding those factors is prejudicial error. See In re D.S., 10th Dist. No.
07AP-479, 

2007-Ohio-6781

, ¶ 13 ("It is not prejudicial for a court to fail to mention or
consider factors that are irrelevant to the case at hand."); A.M. at ¶ 36.
       {¶ 44} Accordingly, we overrule J.H.'s sole assignment of error.
IV. Conclusion
       {¶ 45} Having overruled J.H.'s sole assignment of error, we affirm the June 25, 2020
decision and judgment entry of the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch.
                                                                         Judgment affirmed.
                      SADLER and LUPER SCHUSTER, JJ., concur.

Add comment

By

Recent Posts

Recent Comments